As we, the members of Unit 1012: The VFFDP, are anti-crime and pro victims rights activist ourselves, we will also help fight any attempt to end LWOP for juveniles also. Read this article and we will give you a message to pass to the Ohioan Governor, Mike DeWine to veto SB 256.
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Students and others hold
a candlelight vigil at St. Mary's of the Assumption Church in Chardon, Ohio, on
Feb. 28, 2012, after a school shooting that left three students dead and three
others injured. The teen gunman was sentenced to prison for life without the
possibility of parole. (Photo: Jeff Swensen/Getty Images)
Ohio Bill to Curb No-Parole Sentences for Juvenile Killers Has No Basis in Constitution
Cully
Stimson / @cullystimson / / 0 Comments
Commentary By
Charles
“Cully” Stimson is a leading expert in national security, homeland security,
crime control, immigration, and drug policy at The Heritage Foundation’s Center
for Legal and Judicial Studies. Read his
research.
The Ohio state
Senate co-sponsor of a bill, SB 256, which would do just that, recently wrote
that the Supreme Court has held juvenile
sentences of life without parole unconstitutional, but the Supreme Court
has never
done so.
If this bill
gets out of the state Senate Judiciary Committee next week, Speaker of the
House Bob Cupp, R-Lima, should refuse to bring the misinformed bill to the
floor, thereby killing it, or at least agree to restart the process next year
with appropriate amendments based on the Supreme Court’s actual holdings in
this area of the law.
For a juvenile
killer to be eligible for a sentence of life without parole, the legislation
has proposed a new offense called “aggravated homicide,” defined as the
purposeful killing of three or more people when the offender is the principal
offender in each offense.
So, if a juvenile kills two people and wounds 20, he could not be sentenced to life without parole.
Or if a
juvenile such as Jordyn Wade, who was convicted of four aggravated murders in
Franklin County, Ohio, several years ago participates in the killing with
multiple people, but does not actually pull the trigger, he cannot be sentenced
to life without parole.
Before
describing how the legislation is based on a false premise, and why it is
misguided, it’s also important to see how warped the bill is because of the
case of T.J. Lane, a school shooter who killed three students and wounded three
others, as described by the prosecutor who handled his case.
T.J.
Lane School Massacre
On a cold
February day in 2012, T.J. Lane strode into Chardon High School in Chardon,
Ohio, armed with a .22-caliber semi-automatic Ruger handgun and a knife,
wearing a T-shirt with “KILLER” emblazoned across the front.
He stood next
to a table where nine students were sitting. He pulled out his gun and
methodically shot Russell King, Demetrius Hewlin, and Daniel Parmertor in the
head, killing them instantly. He also shot Nate Mueller, Joy Rickers, and Nick
Walczak.
When Walczak
struggled to get away and ran down the school hallway, Lane ran after him, and
shot him in the neck, paralyzing him for life. Lane was eventually captured by
police.
The
17-year-old was tried as an adult, but avoided trial by pleading guilty to
numerous charges, including three counts of aggravated murder.
At his
sentencing, Lane mocked the families of the victims and raised his middle
finger at them, and said,
“F— all of you.” The judge sentenced him to life without parole for each
murder, to run consecutive to each other, plus 37 years for his other crimes.
Legislation
Based on a False Premise
The problem is
that many, if not most, of the legislators, including a Republican senator who
co-sponsored the bill in the Ohio Senate, think the Supreme Court has held that
life without parole sentences for juvenile killers are unconstitutional,
and that as a result, Ohio legislators are required to abolish such sentences
under state law.
At the same
time, they created the new offense of aggravated homicide, which would apply to
juveniles convicted of killing three or more persons and render them eligible
to be sentenced to life without parole.
State Sen.
Nathan Manning, a co-sponsor of the bill, wrote in his press statement
announcing SB 256 that his legislation would “bring Ohio in line with a number
of … Supreme Court rulings … that declared it unconstitutional for a child be
given a sentence of life without parole.”
That premise
is incorrect. The Supreme Court did no such thing. I know, because I
co-authored a book, “Adult
Time for Adult Crimes,” on the subject, which has been cited in Supreme
Court briefs supporting the constitutionality of the rarely imposed sentence.
The bill would
abolish a sentence of life without parole by giving juvenile killers who
received such a sentence the chance of being paroled at the age of 40.
To be clear,
the bill might be a worthwhile topic to debate and consider as a matter of
policy. But the sponsors, and Legislature as a whole, should begin any policy
debate with a clear understanding of what the law requires, and what their
options are, as I described in my written testimony submitted to the Ohio House
Judiciary Committee last week.
As is, the
bill is fundamentally flawed and should be shelved, or at the very least, taken
up next year with appropriate amendments.
Life
Without Parole for Juvenile Killers Is Constitutional
Life without
parole for juvenile killers is reasonable, constitutional, and (appropriately)
rare. In response to the Western world’s worst juvenile crime problem, U.S.
legislators have enacted commonsense measures to protect the public and to hold
these dangerous criminals accountable.
Twenty-nine
states and the federal government have set the maximum punishment for juvenile
killers at life without the possibility of parole.
Activists
argue that the Constitution forbids sentences of life without parole for
juvenile offenders, but the Supreme Court declined to hold life without parole
for juvenile killers unconstitutional in Graham
v. Florida in 2010, in Miller
v. Alabama in 2012, and in Montgomery v. Louisiana in 2016.
Most juvenile
offenders should not and do not have their cases adjudicated in the adult
criminal justice system. Every state has a juvenile justice system, and those
courts handle the vast majority of crimes committed by juveniles. We believe,
as a society, that most juveniles are immature and capable of
rehabilitation.
It is true
that the adolescent brain is not fully developed until the early 20s. But as a
society, we draw legal lines, with 18 being the typical line between those who
are tried as adults and those who are tried as juveniles.
The vast
majority of murderers under the age of 18 were 17 or 16 years old when they
killed their victims. They are not “children,” as opponents of juvenile
life without parole sentences refer to them. They can drive cars, go to
college, get married, join the military, and in some states, terminate a
pregnancy without parental permission. We don’t call high school juniors and
seniors “children,” yet these are the very same people who make up the bulk of
juvenile killers sentenced to life without parole.
But as adults,
we also know that by the time they reach the age or 16 or 17, they know right
from wrong, and they certainly know that you should not kill another human
being.
A small number
of murderers evince characteristics that make them unworthy of the leniency we
otherwise afford to most juvenile offenders; namely, cruelty, wantonness, and a
complete disregard for the lives of others.
Some of these
juvenile offenders are tried as adults, and a small proportion of them are
sentenced to life without parole, the strongest sentence available to express
society’s disapproval, incapacitate the criminal, and deter the most serious
offenses.
Used
sparingly, as it is, life without parole for the few murderers that a judge
finds “permanently incorrigible”—as required by Miller v. Alabama—is an
effective and lawful sentence for the worst juvenile offenders. On the
merits, it has a place in our laws.
Mandatory
Life Without Parole Sentences for Juvenile Killers Are Unconstitutional
In its
2011-2012 term, the Supreme Court considered two challenges to juvenile life
without parole sentences. Both cases, which were consolidated, involved
mandatory-sentencing schemes that included life without parole for juvenile
homicide offenders.
In its
decision, the Supreme Court found that the Eighth Amendment prohibits
sentencing schemes that mandate sentences of life without the possibility of
parole for juvenile murderers, but declined to consider whether it bars
juvenile life without parole entirely.
In other
words, the court once again declined to hold that life without parole sentences
for juvenile killers are unconstitutional. Thus, life without parole for
juvenile killers, as long as the sentence is not mandatory, is an option for
state legislatures.
Significantly,
not a single justice even suggested that imposing life without parole sentences
for teenage murderers would violate the Constitution.
However,
before such a sentence can be imposed by the sentencing judge on a teenage
murderer, the judge must consider the offender’s youth and other attendant
characteristics.
The high court
stated that its precedents had established that teenage offenders are to be
treated differently from adults for sentencing purposes under our Constitution
because their “lack of maturity” and “underdeveloped sense of responsibility”
lead to recklessness, impulsivity, and heedless risk-taking, and that these
distinctive attributes diminish the penological justifications for imposing the
harshest sentences on juvenile offenders, even those who commit the worst
crimes.
Miller v.
Alabama did not foreclose the possibility of life without parole sentences for
juvenile killers, provided the sentencing scheme is not mandatory and allows
for an individualized determination.
If the
Legislature decides, as a matter of policy, to abolish juvenile sentences of
life without parole, that is entirely within its discretion. However, it is not
required to do so under existing Supreme Court precedent.
Consequently,
if the Legislature decides, again, as a matter of policy, to keep those
sentences, that is also entirely within its discretion.
One option
here that would be helpful is to craft legislation that details the
factors—consistent with the holding in Miller v. Alabama—that a sentencing
judge must weigh when considering the offender’s youth and other attendant
characteristics.
The factors
announced in Miller v. Alabama can act as a constitutional floor, and state
legislatures are free to add elements that a sentencing judge must find before
imposing life without parole on a juvenile killer.
Furthermore,
such legislation could confine such sentences to 17-year-olds or provide other
guardrails to limit the availability of the life without parole sentence to the
worst of the worst.
Setting
the Record Straight
Some proponents
of SB 256 have provided testimony that is troublesome, if not outright
misleading.
The Campaign
for the Fair Sentencing of Youth testified that, “By preserving
life-without-parole sentences for children, states expose themselves to Miller
and Montgomery violations each time a child is charged with murder. Based on
juvenile brain science and the demonstrated potential all children have for
rehabilitation, the Campaign believes it is impossible for courts to accurately
predict which children are ‘irreparably corrupt.’”
States do not
“expose themselves to Miller and Montgomery violations” each time a juvenile is
charged with murder. Most of these cases are adjudicated in juvenile
court. Miller v. Alabama and Montgomery v. Louisiana don’t apply in juvenile
court, because juvenile courts do not sentence those found responsible to long
sentences, and can’t sentence juveniles to life without parole.
Furthermore,
most juvenile killers tried in adult court aren’t sentenced to life without
parole, so those cases don’t apply there either.
For those
select juvenile murderers who are tried in adult court and sentenced to life
without parole, there is also no danger of “Miller violations” if the
sentencing judge develops a thorough record of the offender’s youthful
characteristics and makes a finding that he is “permanently
incorrigible.”
How a judge
must do that, and what passes muster as a proper application of the Miller v.
Alabama factors, is the issue before the court this term in Jones v.
Mississippi.
The Campaign
for the Fair Sentencing of Youth also testified that “SB 256 takes an important
step toward constitutional compliance for youth convicted of serious crimes by
abolishing life without parole, providing meaningful opportunities for parole
review after serving a term of years, and setting forth the factors particular
to youth to be considered at the time of original sentencing and at the parole
review.”
There are a
number of problems with that statement.
First, as
stated above, the Supreme Court has never held that life without parole
sentences for juvenile killers are unconstitutional. Thus, the “step
toward constitutional compliance for youth convicted of serious crimes by
abolishing life without parole” is confusing at the least, and misleading at
best.
There is no
step to take, as the Ohio Legislature is not required to abolish juvenile life
without parole sentences. As a matter of policy, state legislatures can keep
the sentence for juvenile killers or abolish it.
Second,
legislatures are not required to set forth “factors particular to youth to be
considered at the time of original sentencing.” Rather, sentencing judges are
required to apply the Miller v. Alabama factors to any juvenile killer who is
facing a possible life without sentence.
And since the
court in Montgomery v. Louisiana held that Miller was to be applied
retroactively, all juveniles serving life without parole sentences must get a
new sentencing hearing, and if the government seeks a sentence of life without
parole, the sentencing judge must apply the Miller factors.
How this is
done is up to the discretion of the judge, as informed by the Supreme Court’s
decision in Miller.
The Ohio
Legislature could pass legislation detailing the factors a sentencing judge
must consider, so long as they are not inconsistent with Miller. That’s its
choice. Absent such legislation, sentencing judges will apply the factors
announced in Miller in individual cases.
The
Misleading International Law Argument
The Campaign
for Fair Sentencing of Youth also provided misleading testimony about U.S.
treaty obligations and international law. It testified, “Sentencing children to
die in prison directly violates Article 37 of the United Nations Convention on
the Rights of the Child, which prohibits the use of ‘capital punishment and
life without the possibility of release’ as sentencing options for people
younger than 18.”
But the United
States is not a party to the controversial U.N. Convention on the Rights of the
Child, and for good reason. The Senate has refused to ratify that treaty,
as it undermines the family, freedom of religion, and our sovereignty.
The Campaign
for Fair Sentencing of Youth misleads the committee when it claims that the
main reason why senators from both parties have refused to ratify that
controversial treaty is over the juvenile life without parole
issue.
As we detailed
in our book “Adult Time
for Adult Crimes,” the United States (and, by extension, the individual
states) are not required by the Convention Against Torture or the International
Covenant on Civil and Political Rights to ban life without parole sentences for
juvenile killers.
Finally, the
suggestion that international law and our treaty obligations require state
legislatures to abolish juvenile life without parole sentences has been trotted
out by opponents of such sentences for years, and been repeatedly rejected by
the Supreme Court.
Options
for the Ohio Legislature
Sponsors of
the legislation have been misled about, or fail to understand, the Supreme
Court’s jurisprudence with respect to the constitutionality of life without
parole sentences for juvenile killers. The premise of the legislation is
flawed: The sentence is not unconstitutional, as long as it is not mandatory.
If the
legislation advances out of committee next week, the House speaker should
refuse to bring up the bill because it is based on a false premise. The
bill would expire at the end of the year.
Alternatively,
the legislation should be amended so as not to apply retroactively. It is
simply not fair to the victims of these horrible crimes, and their families, to
have to relive these cases over and over.
Since the court’s
decision in Miller v. Alabama already requires the sentencing judge to hold a
new sentencing hearing to determine whether the murderer is “permanently
incorrigible,” the victims will be put through hell again.
Fairness and
compassion for victims’ rights dictate that the Legislature not victimize them
again by passing legislation that applies to those who have been sentenced
already and whose convictions have been upheld on appeal.
The governor
always has the power to commute their sentences or give them a pardon.
Legislators
could hold meaningful hearings next year on the factors that judges must
consider under the Supreme Court’s Miller v. Alabama case before sentencing an
appropriate teenage murderer to life without parole. The “permanently incorrigible”
standard could act as a floor, and the Legislature could require a sentencing
judge to analyze specific additional factors and make findings before
considering a sentence of life without parole.
There’s no
compelling reason to hastily enact legislation related to juvenile life without
parole sentences in Ohio. The sentence is rarely sought, and rarely handed
down, and only for the most heinous murderers.
Rather
than rush through a bill based on a false premise, Ohio legislators should
table this bill and start from scratch next year with a full understanding of
Supreme Court precedent, and consider the options discussed here and in my
written testimony.
https://www.facebook.com/VictimsFamiliesForTheDeathPenalty/posts/3355142641274345
The Letter:
Hello, Governor DeWine
I am emailing
to urge you to veto Senate Bill 256. SB 256 would allow criminals responsible
for crimes such as rape and murder to be released early. Parole boards often
release dangerous criminals who then go on to re-offend. This bill would allow
more dangerous criminals to be paroled, which would harm Ohioans. SB 256 would
also traumatize victims by forcing them to repeatedly relive the crimes at
parole hearings.
SB 256
prioritizes the release of violent criminals above the safety of law-abiding
citizens and the rights of innocent victims. I ask that you protect the rights
of victims and the safety of all Ohioans by vetoing SB 256.
OTHER LINKS:
Counterpoint: The Death Penalty Is Appropriate
Posted to Politics December 27, 2019 by Charles
Stimson
https://www.facebook.com/VictimsFamiliesForTheDeathPenalty/posts/2491752590946692
https://www.insidesources.com/counterpoint-the-death-penalty-is-appropriate/
